LAXMANA SUBRAO PATIL Vs. BHAGUBAI

JUDGEMENT

(1.) Petitioners before this Court are the II party, in proceedings under Section 145 Cr.P.C. before the Sub-Divisional Magistrate, Belgaum Sub Division, Beigairm. They are the four sons of one Subrao. The eldest brother - Mareppa who is dead has a son by name Subrao. Subrao's widow is Bhagubai who was Party No. I before the said Magistrate. On the ground that there was an imminent breach of the peace, certain properties were attached and a preliminary order was passed by the Taluka Magistrate, Hukeri on 5-5-1959. Before the said Magistrate, Party No. II, the present petitioners, filed their statement in which they alleged that there was no likelihood of the breach of the peace and hence the proceedings should be dropped. Moreover, they alleged that there was a Civil case pending between the parties and on that account it was necessary that the proceedings under Section 145 Cr.P.C. should be stayed. Though the learned Magistrate did not accede to the first request of the II party for dropping the proceedings, he however, acceded to the second request viz. to stay the proceedings till the pendency of the Civil Suit. Later, these proceedings were transferred to the Court of the Sub-Divisional Magistrate, Belgaum. It is this latter Magistrate who has passed an order dropping the proceedings. He has further ordered that the attachment of the properties be vacated and the possession of the lands so attached be handed over to Party No. I Bhagubai widow of Subrao, son of Mareppa. He also ordered that the income from the lands which was in the hands of the Receiver also be handed over to the Party No. 1.

(2.) Aggrieved by that order, Party No. II approached the District Magistrate, Belgaum in revision who upheld the order of the Sub-Divisional Magistrate.

(3.) It is strenuously urged by Sri Hiremath, the learned Advocate for Party II, the present petitioners that the orders passed by the Sub-Divisional Magistrate as well as the District Magistrate are vitiated because the Sub-Divisional Magistrate had no power to drop the proceedings and to hand over the possession of the properties to Party No. 1. ' The Sub-Divisional Magistrate, it is submitted, has ignored the provisions of Section 146 (1) Cr.P.C. in not coming to a conclusion as to which party was in possession of the properties nor has he referred the case for a finding on that point to a Civil Court. The Sub-Divisional Magistrate has passed an order dropping the proceedings because of the decision of a Civil Court in Civil Suit No. 26/58 on the file of the Civil Judge, J.D. Hukeri.